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French is the language of diplomacy, German the language of science, and English the language of trade. Whereas German has been displaced by English in science, French continues to occupy a privileged position in international diplomacy. Its use is protected by its designation as one of the two working languages of the United Nations (UN), the International Court of Justice, the International Criminal Court and ad hoc UN-backed tribunals.
The 50th anniversary of the adoption of the Universal Declaration of Human Rights on December 10th this year prompted some reflections and grounds for concern about international human rights law.
Which Nordic state had sovereignty over Iceland until 1918? Which state was allowed to discriminate against a transgender woman by annulling her marriage? Who disputed ownership of Eastern Greenland before the Permanent Court of International Justice? In preparation for the European Society of International Law's 11th annual conference, this year held in Oslo, test your knowledge of Nordic countries in international law with our quiz.
Two hundred and ninety-eight passengers aboard Malaysian Airlines flight MH17 were killed when Ukrainian rebels shot down the commercial airliner in July 2014. Because of the rebels’ close ties with the Russian Republic, the international community immediately condemned the Putin regime for this tragedy. Yet, while Russia is certainly deserving of moral and political blame, what is less clear is Russian responsibility under international law. The problem is that international law has often struggled assigning state responsibility when national borders are crossed and two (or more) sovereigns are involved. The essence of the problem is that under governing legal standards, a state could provide enormous levels of military, economic, and political support to another state or to a paramilitary group in another state – even with full knowledge that the recipient will thereby violate international human rights and humanitarian law standards — but will not share any responsibility for these international wrongs unless it can be established that the sending state exercised near total control over the recipient.
The leading caselaw in this area has been handed down by the International Court of Justice (ICJ) but what adds another layer of complexity to the present situation is that the Ukraine and Russia are both parties to the European Convention; it is possible that the European Court of Human Rights (ECtHR) might well provide a different answer.
To be clear, this article concerns itself only with determining Russian responsibility for the downing of MH17. Following this tragic event, approximately five thousand Russian troops took part in what now appears to have been a limited invasion of areas of the Ukraine. Thus, there are elements of both “indirect” and “direct” Russian involvement in the Ukraine, although only the former will be addressed. The larger point involves the legal uncertainty when states act outside their borders and in doing so contribute to the violation of international human rights standards.
International Court of Justice
The two leading cases regarding transnational or extraterritorial state responsibility have been handed down by the International Court of Justice. In Nicaragua v. United States (1986) Nicaragua brought an action against the United States based on two grounds. One related to “direct” actions carried out by US agents in Nicaragua, including the mining of the country’s harbors, and on this claim the Court ruled against the United States. The second claim was based on the “indirect” actions of the United States, namely, its support for the contra rebels who were trying to overthrow the ruling Sandinista regime. Nicaragua’s argument was that because of the very close ties between the United States and the contras, the former should bear at least some responsibility for the massive levels of human rights violations carried out by the latter.
The Court rejected this position employing an “effective control” standard, which in many ways is much closer to an absolute control test. Or to quote from the Court itself: “In light of the evidence and material available to it, the Court is not satisfied that all the operations launched by the contra force, at every stage of the conflict, reflected strategy and tactics wholly devised by the United States” (par. 106, emphases supplied).
Nearly a decade later, the International Court of Justice was faced with a similar scenario in the Genocide Case (Bosnia v. Serbia). The claim made by Bosnia was that because of the deep connections between the Serbian government and its Bosnian Serb allies, the former should have some responsibility for the acts of genocide carried out by the latter. Yet, as in Nicaragua, the ICJ ruled that Serbia had not exercised the requisite level of control over the Bosnian Serbs. Thus, the Court ruled that Serbia was not responsible for carrying out genocide itself, or for directing genocide, or even for “aiding and assisting” or “complicity” in the genocide that occurred following the overthrow of Srebrenica. However, in a part of its ruling that has received far too little attention, the Court did rule that Serbia had failed to “prevent” genocide when it could have exercised its “influence” to do so, and that it had also not met its Convention obligation to “punish” those involved in genocide due to its failure to fully cooperate with the International Criminal Tribunal for the Former Yugoslavia.
Turning back to the situation involving MH17, while no action has yet been filed with the International Court of Justice (and perhaps never will be filed), according to the Nicaragua-Bosnia line of cases any attempt to hold Russia responsible for the downing of MH17 would appear likely to fail for the simple reason that the relationship between the Russian state and its Ukrainian allies was nowhere near as strong as the relationship between the United States and the contras (Nicaragua) or that between the Serbian government and its Bosnian Serb allies (Genocide Case). The point is that if responsibility could not be established in these other cases it is by no means likely that it could be established in the present situation.
European Court of Human Rights
Because Russia and the Ukraine are both parties to the European Convention of Human Rights, what also needs to be considered is how the European Court of Human Rights (ECtHR) might address this issue if a case were brought either under the inter-state complaint mechanism, or (more likely) by means of an individual complaint filed by a family member killed in the crash.
Although the European Court of Human Rights has increasing dealt with cases with an extraterritorial element, in nearly every instance the claim has been based on European states carrying out “direct” actions in other states – whether it be NATO forces dropping bombs in Serbia and killing civilians on the ground (Bankovic), or Turkish officials arresting a suspected terrorist in Kenya (Ocalan), or British troops killing civilians in Iraq (Al-Skeini) – rather than instances where the Convention states have acted “indirectly.” The most pertinent ECtHR case is Ilascu v. Russia and Moldova where the applicants (Moldovan citizens) claimed they were arrested at their homes in Tiraspol by security personnel, some of whom were wearing the insignia of the former USSR. Unlike the ICJ’s “effective control” standard, the ECtHR ruled that Russia had exercised what it termed as “effective authority” or “decisive influence” over paramilitary forces in Moldova and because of this they bore responsibility for violations of the European Convention suffered by the applicants. Thus, on the basis of Ilascu, there is at least some possibility that due to the “effective authority” or the “decisive influence” that Russia appeared to exercise over its Ukrainian rebel allies, the ECtHR, unlike the ICJ, could assign responsibility to Russia for the downing of MH17.
Conclusion
Notwithstanding the immediate international condemnation of the Putin regime following the MH17 tragedy, international law seems to exist in a totally removed from international opinion and consensus. Under the caselaw of the International Court of Justice, Russia would appear not to be responsible for the downing of MH17 on the basis that it would be difficult to establish that the Russian government had exercised the requisite level of “effective control” over its Ukrainian rebel allies. On the other hand, if a case were brought before the European Court of Human Rights, there is at least some chance of establishing Russian responsibility on the basis of the Court’s previous ruling in Ilascu, although it should be said that this is not a particularly strong precedent.
The larger point is to ask why state responsibility is so difficult to establish when international borders are crossed and states act in another country, at least indirectly, as in the present situation. The key element ought to be the extent to which a state has acted in a way that leads to violations of international human rights and humanitarian law standards. Employing such a standard, it would be eminently clear – would it not? – that Russia would be at least partly responsible because of its strong relationship with Ukrainian rebels that were both armed (by Russia) and dangerous, and which had already shown a complete disregard for international law.
When, in 1935, the Permanent Court of International Justice was requested by the Council of the League of Nations to provide an advisory opinion on the Minority Schools in Albania, it emphasized that “the application of the same regime to a majority as to a minority, whose needs are quite different, would only create an apparent equality.” The Court also added that the rationale of the protection of minorities is to allow them to “preserving the characteristics which distinguish them from the majority, and satisfying the ensuing special needs” (ibid., at 48). The well-known Aristotelian formula — according to which equality consists in treating like cases alike and unlike cases differently — implies that the metaphysical “idea of equality of men as persons and equal treatment” should be handled in a flexible manner, to allow “different treatment of persons [when it is justified by] the consideration of the differences of factual circumstances such as sex, age, language, religion, economic condition, education, etc.”
International Court of Justice, The Hague, Netherlands. Public domain via Wikimedia Commons.
If one were asked to choose one word to embrace all factual — but also spiritual, intellectual and emotional — circumstances (rectius: ”elements”) determining the existence of differences among individuals and communities, this word would certainly be culture, intended as “the whole complex of distinctive spiritual, material, intellectual and emotional features that characterize a society or social group [including] not only the arts and letters, but also modes of life, the fundamental rights of the human being, value systems, traditions and beliefs” (1982 UNESCO Mexico City Declaration on Cultural Policies).
Culture is indeed the element determining the uniqueness, identity, and distinctiveness of each human being (as an individual) and community (as a collectivity). Ultimately, the cultural specificity of each person or community determines their life aspirations, expectations, and choices. Since human rights are one of the main “tools” available to human beings to pursue their life expectations and dreams, their strict interconnection with culture is beyond question. Therefore, conceiving human rights in terms of a monolithic system of inflexible rules destined to be applied according to pre-determined and standardized criteria wouldn’t help much in ensuring their effectiveness in pursuing the well-being and happiness of human beings.
On the contrary, the correct approach to international human rights law–in terms of understanding, interpretation, adjudication and redress for breaches–should be centered on the idea of multiculturalism, so as that in each concrete case the specific needs of the people specifically concerned should be taken into primary account. In the most recent decades such an approach has actually been adopted in the context of relevant international practice, which, through promoting the process of culturalization of human rights law, is making human rights standards much more responsive to the real needs of human beings and, a fortiori, much more effective.
The specific situation of indigenous peoples–who, due to their cultural specificity and vision of life, actually need a differentiated treatment in the context of human rights adjudication and enforcement–offers a very clear idea of how such a process works. Human rights monitoring bodies have developed a marked sensibility for their needs, carving in stone a noticeably evolutionary piece of culturally-responsive jurisprudence. In particular, they have “adapted” human rights standards of individual character to the collectively-driven understanding of life and social relationships of indigenous peoples. In this respect, for example, the Human Rights Committee has affirmed that, although the rights of the members of ethnic, religious, or linguistic minorities to enjoy their own culture, to profess and practice their own religion, or to use their own language, contemplated by Article 27 of the International Covenant on Civil and Political Rights, “are individual rights, they depend in turn on the ability of the minority group to maintain its culture, language, or religion. Accordingly, positive measures by States may also be necessary to protect the identity of a minority” (General comment No. 23(50) (art. 27)).
To a similar extent, most monitoring bodies have extended the scope of human rights treaty provisions defending the individual right to property to cover the collective property of ancestral lands by indigenous peoples. A similar hermeneutic approach has been followed with respect to the interpretation of other human rights standards, through adapting them to the cultural needs and views of indigenous communities. This happens, for instance, with respect to the right to humane treatment, which includes the right of every person to have their physical, mental, and moral integrity respected and, consequently, the prohibition of torture or cruel, inhuman, or degrading treatment or punishment. So, for example, the Inter-American Court of Human Rights has equated a community that is denied the possibility of burying its dead according to its own traditions to inhuman treatment. This is because such a situation is perceived by the community members–in light of their own culture–as a severe offence, leading “to a number of ‘spiritually-caused illnesses’ that become manifest as actual physical maladies and can potentially affect the entire natural lineage” of the community itself (e.g. Case of Moiwana Community v. Suriname). This practice is certainly to be welcomed, and its extension to the specific needs of all diverse cultural groups inhabiting the world promises to represent a huge step forward towards maximizing the effectiveness of human rights standards in the life of people.
Federico Lenzerini is Professor of International Law and European Union Law at the University of Siena (Italy). He is also Professor at the LLM programme in Intercultural Human Rights of the St. Thomas University School of Law, Miami (FL), USA. He is the author of the book The Culturalization of Human Rights Law, published by Oxford University Press in 2014. Federico Lenzerini can be found on LinkedIn.
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After four years of anticipation the International Court of Justice delivered a Judgment in the whaling case. The Judgment raises many issues of ecological nature. It also analyses and interprets the provisions of the 1946 International Convention for the Regulation of Whaling (ICRW) thus enriching the law of treaties.
Historically whaling has been a contentious issue. Even early attempts at its international regulation were contested. The need for the regulation of whaling was brought to the League of Nations attention in 1925 by M. José Suarez in his report on Codification Questionnaire no. 7 ‘Exploitation of the Products of the Sea’ in which observed that the modern whaling industry was ‘rapidly exterminating the whale’. Before the Second World War there two Conventions attempted to regulate the whaling. The Convention for Regulation of Whaling was opened for signature in Geneva on 24 September 1931 and signed by 31 States (with only eight ratifications), and 1937 Agreement for the Regulation of Whaling and Final Act was signed on 8 June 1937.
The 1946 ICRW had a double purpose: the protection of whales and the orderly regulating of the whaling industry, which at the time of this Convention was thriving. However, with the passage of time the ecological purpose of the Convention started to play the more prominent role, culminating in the establishment of the 1982 moratorium on commercial whaling (“zero quotas” effective in 1985-86 season). That decision lead to the amendment of the Schedule (para. 10e) that is an integral part of the Convention. However, Norway opted out of this decision on moratorium and Iceland appended a reservation after the re-joining the Convention, thus both States still continue commercial whaling, setting their own national quotas outside the jurisdiction of the International Whaling Commission (IWC), the Convention’s regulatory body. Japan initially opted out of moratorium but later withdrew it.
The IWC consists of eighty-nine States, the majority of which are non-whaling States, making it a rather unusual international institution. It would be a simplification to argue that there is only a handful of States opposing resuming of the commercial whaling. The IWC is in a permanent crisis due to its policies. These tensions were expressed in the 2006 St Kitts and Nevis Declaration, in which several States stated “their concern that the IWC has failed to meet its obligations under the terms of the ICRW” and declared their “commitment to normalize the functions of the IWC based on the terms of the ICRW and other relevant international law, respect for cultural diversity and traditions of coastal peoples and the fundamental principles of sustainable use of resources.”
The ICRW permits three types of whaling: commercial, scientific, and aboriginal (subsistence) whaling — all of them very complex legally and contentious. After 1986 Japan has conducted whaling operations in the Southern Ocean under the auspices of the scientific research or special permit. Whale Research Program under Special Permit in the Antarctic‟ (JARPA I) began in the year following the 1986 moratorium. The JARPA II began in 2005.
A Minke whale and her 1-year-old calf are dragged aboard the Nisshin Maru, a Japanese whaling vessel. Photo by Australian Customs and Border Protection Service, 6 February 2008. CC BY-SA 3.0 Australia via Wikimedia Commons.
The subject-matter of the recent Judgment of the International Court of Justice was Japanese scientific whaling based on Article VIII of the ICRW, which permits State parties to issue special permits authorizing the taking and killing of whales for scientific purposes. This type of whaling (unlike commercial and aboriginal) is regulated by national authorities, not the IWC. State parties issuing permits under Article VIII have only a procedural requirement of reporting to the IWC.
In very broad brushstrokes the case was based on Australia’s allegation that Japanese scientific whaling was in fact a disguised commercial whaling; moreover, Australia alleged bad faith on the part of Japan. Japan relied in its pleadings on a long tradition of eating whale meat and arguing that in fact the analysis of the ICRW permits sustainable whaling. The case also has certain jurisdictional issues. The court unanimously found it had jurisdiction to hear the case, and by 12 votes to 4 found that special permits granted by Japan in connection with the program, JARPA II, did not fall within the IWC convention.
From the point of view of the law of treaties, the interpretation of Article VIII of the ICRW was of fundamental importance. The Court noted that taking into account the Preamble and other provisions of the ICRW, neither a restrictive not an expansive interpretation of Article VIII is justified. The Court observed that the programmes for purposes of scientific research should foster scientific knowledge. They may pursue an aim other than either conservation or sustainable exploitation of whale stocks. The Court, however, has not provided the definition of scientific research but analysed and interpreted the phrase “for purposes of”.
The Court concluded that although Art. VIIII of the ICRW exempts from the Convention grant of special permits, scientific whaling is not outside of the Convention. Therefore the ‘margin of appreciation’ of States (members of IWC in such a type of whaling as pleaded by Japan) is not unlimited and must conform with an objective standard (para 62 of the Judgment). The Court raised doubts over increased sample sizes between the country’s first whaling program and JARPA II. It also noted lack of transparency in how its sample sizes were determined and found that Japan has not sufficiently substantiated the scale of lethal sampling. The Court stated that JARPA II involves activities that in broad terms can be characterized as scientific research, but that “the evidence does not establish that the design and implementation of the Program are reasonable in relation to achieving its stated objectives.” The Court concluded that JARPA II is not “for purposes of scientific research” pursuant to Article VIII (1) of the Convention and that Japan violated the three relevant provisions (paragraphs 7(b), 10 (d) and (e)) of the schedule.
Most importantly, the Court has emphasized the lack of Japan’s willingness to cooperate with the IWC in the use of non-lethal scientific methods which became available intervening years.
The ICJ therefore ordered revoking by Japan any pending authorization, permit or license to kill, take or treat whales in relation to JARPA II, and refraining from granting any further permits under Article VIII (1) of the Convention, in pursuance of that Program. Japan said it would abide by the decision but added it “regrets and is deeply disappointed by the decision”.
The Judgment of the Court does not impact of future scientific whaling of Japan and the Court noted that Japan will rely on Judgment’s findings ‘as it evaluates the possibility of granting any future permits under Article VIII, paragraph 1, of the Convention’ (para. 246 of the Judgment).
By judicial necessity, the Court only discussed the case at hand but as a result it has not submitted any definition of scientific whaling and declined to adopt a specific set of criteria to this effect. It declined to discuss commercial whaling and also indigenous whaling. It made some general observations as to linking scientific whaling to the whole nexus of rights and obligations of States under the ICRW and clarified the issue of the margin of appreciation regarding the issuance of special permits, both are a very useful observations but of certain complexity in implementation. It also admitted the possibility of future Japanese whaling, as indeed it cannot be prohibited. In the meantime Japanese scientific whaling in northwestern Pacific is to continue (as well as Icelandic). The Judgment has not resolved the basic conflicts and has not addressed general issues.
There have been a wide-spread applaud as to the Court’s Judgment, which of course is fully understandable. However, there are many questions which were raised by this Judgement relating to the law of treaties and whaling itself. For example there is a question of the choice of the canons of the interpretation of an international legal instrument: the classical rule of the 1969 Vienna Convention on the Law of Treaties or much more daring and contentious evolutionary interpretation (applied with varying degree of success by the European Court of Human Rights), which is closely connected to the issue of consent. The textual interpretation of the ICRW clearly indicates that it allows scientific whaling and commercial whaling. Does the development of general international environmental law, including the preservation and protection of fauna and flora permit a different, evolutionary interpretation that prohibits these activities?
Japan agreed to abide by the Judgment but theoretically it could leave the Convention on commercial whaling, which would defeat the purpose of the Judgment. It can also leave and later re-join the Convention with a reservation (as Iceland did). What about Icelandic scientific whaling? It wasn’t challenged before the Court but it exists and the Judgement will not make any difference to it.
However, the Judgment has provided a very fertile ground for further studies.
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It may be premature to completely write off the recent round of the US-sponsored Israeli-Palestinian peace process. The talks faltered earlier this month when Israel failed to release a batch of prisoners, part of the initial basis for holding the negotiations launched last July. The rapidly disintegrating diplomacy may yet be salvaged. But the three main actors have already made it known they will pursue their own initiatives.
They each may think that their actions will allow them to accumulate more leverage, maybe help position themselves in anticipation of a resumption of bilateral negotiations which, for over twenty years now, has been directed towards establishing a Palestinian state living peacefully alongside Israel. But it is also possible that the steps the parties take will instead deepen the despair of a two state framework ever coming to fruition.
Benjamin Netanyahu
The United States will focus their attention to other pressing issues, such as securing a deal on Iran’s nuclear program. Progress on this front may encourage, perhaps even empower, the Obama administration to resume Israeli-Palestinian negotiations later in its term. But the chances of their success will depend less on yet another intense round of shuttle diplomacy by US Secretary of State John Kerry, and more on whether a distracted Obama presidency will be prepared to pressure Israel to end its occupation. True, Obama enjoys the freedom of a second term presidency (unconcerned about the prospects of re-election). So far however he hasn’t appeared at all inclined to challenge Israeli prime minister Benjamin Netanyahu.
As for Israel, the Netanyahu government will take steps to make life even harder for Palestinians under occupation, and no doubt further entrench its settlement infrastructure in the West Bank, the territory on which Palestinians want to build their own state. Netanyahu, now one of the longest serving prime ministers in Israeli history, has provided very few indications that he is willing to enable the Palestinians to build a viable and contiguous state. He appears confident that the status quo is tenable, and that occupation and settlement of the West Bank can continue to violate international law without facing any serious repercussions. The more likely outcome of such complacency, however, is the irrevocable damage inflicted on the prospects of a two state solution and the harm done to Israel’s security, possibly subjecting it to a wide ranging international boycott movement.
Meanwhile, the Palestinian government, led by Mahmoud Abbas, will desperately strive to ensure that the breakdown of talks not lead to the collapse of his Palestinian Authority. Abbas may seek to use this opportunity to lessen the overall reliance on US sponsorship and achieve Palestinian rights in international bodies such as the UN and the International Court of Justice. This move may placate the growing number of Palestinians who until now have angrily dismissed Abbas’ participation in American-sponsored bilateral negotiations as doing little more than provide political cover to the on-going Israeli occupation, begun almost 50 years ago. But the majority of Palestinians will continue to disparage of how the pursuit of their national project has been paralysed by the weakness and corruption of their leaders and the absence of a unified government and coherent strategy.
Mahmoud Abbas
Though no side wants to be blamed for the collapse of negotiations, it is easy to see how a cycle of action and recrimination could scupper all attempts to revitalize them. More to the point, however, is to ask whether the steps taken will end up burying the very prospects of a two-states solution to the century long conflict which the negotiations are supposed to achieve.
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Image credits: (1) Benjamin Netanyahu. Public domain via Wikimedia Commons; (2) Mahmoud Abbas. By World Economic Forum from Cologny, Switzerland (AbuMazem). CC-BY-SA-2.0 via Wikimedia Commons
